Opinion
Civil No. W-00-CA-290.
November 21, 2000
ORDER
On this date the Court considers Plaintiff's application to proceed in forma pauperis ("IFP") in a lawsuit filed pursuant to 42 U.S.C. § 1983. Plaintiff, a prisoner incarcerated in the Texas Department of Criminal Justice, Institutional Division ("TDCJ-ID"), submitted with his IFP application a form complaint in which he indicated that he had previously filed only one other lawsuit in federal or state court relating to his imprisonment. Plaintiff was instructed that, if there was more than one lawsuit, he should describe the additional lawsuits on another piece of paper. Plaintiff attached several additional pieces of paper to the form complaint, but none described any additional lawsuits he had filed. The form complaint contains a warning that any false or deliberately misleading information provided in response to the questions would result in the imposition of sanctions, which could include, but are not limited to monetary sanctions and/or dismissal of the action with prejudice.
A search of the docket records for all of the federal district courts under the jurisdiction of the United State Court of Appeals for the Fifth Circuit revealed that, prior to submitting this case for filing, this Plaintiff, TIMOTHY RANDOLPH WALLACE, TDCJ #s 894160, 739841 and 537868, had filed at least eleven (11) section 1983 cases in federal courts while he was incarcerated or detained, seven (7) cases in the Northern District of Texas, two (2) cases in the Eastern District of Texas and two (2) cases in the Southern District of Texas.
Although Plaintiff originally filed three (3) cases in the Northern District of Texas under Dallas County Jail #98003682, the docket record in Case No. 7:1996CV00156 indicates that Timothy R. Wallace, TDCJ# 739841 authorized the payment of filing fees in the case from his inmate trust fund account. The TDCJ inmate trust fund certification submitted by Plaintiff in this case (W-OO-CA-290) lists TDCJ# 739841 as one of Plaintiff's previously assigned TDCJ inmate numbers.
Case Nos. 3:1993CV01293; 7:1996CV00156; 7:1996CV00265; 7:1996CV00290; 3:1996CV02973; 3:1998CV01627 and 3:2000CV01834.
Case Nos. 9:1991CV00029 and 9:1991CV00055.
Case Nos. 3:1994CV00652 and 4:1997CV00229.
The docket records in three (3) of the previously filed cases revealed the following: (1) in Case No. 3:1993CV01293, Wallace v. State of Texas, the District Court for the Northern District of Texas, Dallas Division, dismissed the case as frivolous on September 25, 1995 (STRIKE ONE); (2) in Case No. 3:1996CV02973, Wallace v. City of Grand Prairie, Texas, the District Court for the Northen District of Texas, Dallas Division, on March 25, 1998, dismissed Plaintiff's case with prejudice and several of his claims were dismissed for failure to state a claim upon which relief may be granted (STRIKE TWO); and (3) in Case No. 3:2000CVO1834, Wallace v. Johnson, the District Court for the Northern District of Texas, Dallas Division, summarily dismissed Plaintiff's complaint as frivolous on September 25, 2000 (STRIKE THREE). See Adepegba v. Hammons, 103 F.3d 383, 387-388 (5th Cir. 1996) (court discusses what counts as a dismissal or strike under 28 U.S.C. § 1915(g)).
Title 28 U.S.C. § 1915(g) provides that in no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under § 1915 if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury. Choyce v. Dominguez, 160 F.3d 1068, 1070 (5th Cir. 1998). In regard to this Plaintiff, he has, while incarcerated or detained, filed at least three (3) civil actions which have been dismissed as frivolous or for failure to state a claim upon which relief may be granted. Plaintiff is, therefore, barred from bringing this action IFP unless he was under imminent danger of serious physical injury at the time that he sought to file his complaint. Choyce, 160 F.3d at 1070; Banos v. O'Guin, 144 F.3d 883, 884-885 (5th Cir. 1998). Plaintiff's complaint alleges generally that he was wrongfully convicted of three separate disciplinary cases at the Hughs Unit of TDCJ: (1) fighting with another inmate on July 16, 2000; (2) striking a black female officer after he threatened to kill himself on July 18, 2000; and (3) striking an officer which resulted in a use of force by three (3) black officers on September 11, 2000, for which he believes he was denied medical attention. He seems to suggests that these disciplinary cases, the use of force and lack of medical treatment were motivated by the facts that he had filed a lawsuit in "1995 to 1997" challenging TDCJ's policy of forced integration and that he can not adapt to living with black inmates. Plaintiff does not allege that in any of these instances he received any serious physical injury, nor does he allege that he was under imminent danger of serious physical injury at the time he submitted his complaint for filing in forma pauperis. Therefore, the Court finds that Plaintiff is prohibited from proceeding with this case pursuant to 28 U.S.C. § 1915(g).
Additionally, the Court finds that Plaintiff was untruthful in his responses to questions in the form complaint he used to bring this civil action. The only conclusion that can be made regarding Plaintiff's failure to acknowledge the filing of at least eleven (11) prior lawsuits is that the response was made intentionally in the hope that this lawsuit would slip through unnoticed. The Court finds such actions indicative of the malicious and vexatious conduct that the Prisoner Litigation Reform Act was promulgated to address. Accordingly, it is
ORDERED that Plaintiff's application to proceed in forma pauperis be and is hereby DENIED and this case is DISMISSED with prejudice. it is further
ORDERED that Plaintiff is BARRED , pursuant to 28 U.S.C. § 1915(g), from proceeding in forma pauperis in any civil action or appeal. It is further
ORDERED that the Clerk of the Court not accept any future civil actions submitted by Plaintiff for filing, either directly or indirectly by transfer, unless he shall have first obtained prior written consent from a United States District Judge or Magistrate Judge. It is further
ORDERED that any and all motions not previously ruled upon by the Court are hereby DENIED. It is further
ORDERED that the Clerk of the Court send a certified copy of this Order of dismissal and the Judgment to the Texas Department of Criminal Justice, Office of the General Counsel, P.O. Box 13084, Capital Station, Austin, Texas 78711.
JUDGMENT
In accordance with the Order of this Court entered this date; the Court enters its Judgment as follows:
IT IS ORDERED, ADJUDGED AND DECREED that Plaintiff's application to proceed in forma pauperis be and is hereby DENIED and this case is DISMISSED with prejudice.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Plaintiff is BARRED, pursuant to 28 U.S.C. § 1915(g), from proceeding in forma pauperis in any civil action or appeal.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Clerk of the Court not accept any future civil actions submitted by Plaintiff for filing, either directly or indirectly by transfer, unless he shall have first obtained prior written consent from a United States District Judge or Magistrate Judge.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that any relief not specifically granted in the Judgment is DENIED.